Why I’m Not a Frugalista and Monavie Sucks

I’m not a frugalista because I’m not allowed to be. This seems to be ridiculous trademark litigation week in the personal finance blogosphere and a very unfrugal (it seems) frugalista, is sending out notices that she’s trademarked the rather common term and is not allowing other bloggers to use it in their site titles. Good thing I’m not “Frugalista Finance for a Freelance Life.”

Then, you may have heard that Lazy Man and Money is being sued by Monavie. He published a Monavie scam critique, which has gathered 3000 comments and appears in the top 10 search results when you search for Monavie. Monavie is trying to get him to remove metadata keywords on his article.

I’m one of those people who reads just enough about trademark law to be dangerous, because I don’t know enough to give legal advice. However, what both Monavie and the “Frugalista” (I’m not giving her a link, but I’ll link later on to one of the people she’s sent a cease and desist to) are doing is pretty similar.

Why Monavie’s Wrong

In both cases, they’re arguing that when people use their trademarked terms, it’s going to confuse people searching for them. The problem is that Lazy’s critique of Monavie is just that–it’s about Monavie. People won’t be confused into thinking he’s selling their product or is the official Monavie site (except, perhaps, for really really dumb ones who miss the fact that he’s calling Monavie a scam).

And Lazy has the right to use the term Monavie to critique it. He doesn’t have the right to create a product called “Monavie,” because that might confuse people–just like I can’t design sneakers and sell them as “Coke running shoes.” But since he’s not luring people to his site to sell them an alternate product (he’s actually talking about Monavie) and he’s not trying to dilute Monavie’s brand and leach their marketplace “goodwill” by using their name in another product, this is ridiculous.

My verdict – Monavie is going after Lazy because he’s got the most dynamic conversation about them (and how they suck) going on right now. They’re trying to do whatever they can to take him down–which in this case means grasping for straws at similar but inapplicable cases. In his article about their newest C&D request, Lazy outlines these cases and why Monavie is wrong.

Why the Frugalista’s Wrong

Next comes the Frugalista issue. In this case, she’s trying to enforce a trademark of a common word. I think it’s unfrugal and a poor example of a personal finance blogger (who I’d never even heard of until this story broke…).

The thing about trademarks is that it’s easier to trademark something than to enforce it. For instance, if I ran a blog called “Scissors,” I could try to trademark the word “scissors.” But I couldn’t actually force other people to stop using the mark because it’s a generic and common word and because most people wouldn’t think of my blog when you said “scissors.”

The Jackson (recipient of a C&D from the Frugalista-who-shall-not-be-linked) Frugalista offers an argument on why Frugalista does not meet the requirements to be enforced as a trademark. After all, when I say “Frugalista,” does the Frugalist-who-shall-not-be-linked come to your mind? Do you know who I’m talking about? Does it make you think of one thing in particular?

Thought not. What about a type of person? We can all imagine her, and think of people we know who are “frugalistas.”

If her name were something that isn’t common use, like “Finance for a Freelance Life,” or “Lazy Man and Money,” or “The Simple Dollar,” then she’d have a case and I’d be behind her if someone started a blog called “The DC Simple Dollar.” But that’s because the name would be a direct ripoff of her mark. Frugalistas all over the world are simply using an everyday word in blogs like “Frugalista Gardener” or “Frugalista Japan.”

Also, I think the universe should take “frugalista” away from her because she engaged in this petty litigation, hiring lawyers to send C&D notices to bloggers. Yes, in fact, I’m not in charge of the universe and being a bitch. But since she’s causing pain to other, more frugal bloggers who are going to save their money instead of hiring lawyers to contest what should be a pretty easy case to win, I find myself despising her. I hope someone will accept her challenge and rack up legal bills for her. Way to go, person I didn’t no existed until last week, great start!

I just heard the term “frugalista” on a Target commercial…seriously, 2 minutes ago. Is she going to go after the Target corporation, too? Good luck with that. People kill me.
.-= TeacHer´s last blog ..Ok, Here it Goes… =-.

Hi! This is JacksonFrugalista (a.k.a., Amy Marquez of Jackson, MS). Thanks for covering this — and for agreeing that this trademark is just D-U-M-B.

The reaction to this whole thing has been crazy. The implications of this trademark are just nuts — her application says “any use in online journals or blogs.” That’s ANY. Like, this discussion technically violates the mark.

USNews online picked it up, and their reported got more into the fine print of the 2nd application made by she-who-shall-not-be-linked than I did (I stopped reading to pick my jaw up off the floor when I saw the online limitations). Turns out, the applicant gets into cable television and movies in THAT filing.

My blog is tiny-tiny-tiny and not a money maker, so the only dog I have in this hunt is pride. I am, however, pretty concerned about where this kind of trademarking leads us. How many other words will be taken away from bloggers because they can’t spend the money to file opposition or to hire a lawyer?

We need to keep talking about this.

And feel free to visit my blog — my arguments against the mark are on there. Y’all have a great week!
.-= JacksonFrugalista´s last blog ..9/19 garage sales =-.

“Frugalista” is defined as “a person who is fashionable while being thrifty.” It’s listed in the New Oxford American Dictionary and Wiktionary. William Safire named “frugalista” to be his favorite word for 2008.

The entymology doesn’t ncessarily prove this, but it is said to be a combination of “frugal” and “fashionista.”

It’s a generic, descriptive word — the very kind of word that is NOT supposed to be trademarked.
.-= JacksonFrugalista´s last blog ..9/19 garage sales =-.

To be honest, I don’t think of any blogger when “frugalista” is mentioned, at least in terms of their blog names. I think someone like Fabulously Broke in the City comes to mind only because she seems to be both frugal and fabulous!
I especially don’t know who this Miami Herald girl is.
She is doing a good job of getting more attention to her blog! It’s the whole “any publicity is good publicity” method.
.-= Stephanie´s last blog ..Teach Me Tuesday: CD Ladders =-.

I don’t have a blog, I just read some — and I’ve NEVER heard of this girl that thinks she’s the only frugalista out there. And I’ve read a lot of the different “frugalista” blogs. Most of the frugalista blogs I’ve read seem to be by ordinary women trying to juggle faith, family and finances in difficult times… and they share their experiences with me. Sometimes I find terrific insight and sometimes I find a completely different perspective than my own. But I always walk away from my computer having gained something. After reading this article I can promise I won’t be following this fruglista’s blog or seeking it out — her attitude is in direct contrast to just about every other frugalista blogger I’ve seen, for them, it seems to be “we’re in this together”. Ms.-I’m-the-only-frugalista-in-the-world seems to be all about no one but herself. Not the kind of person I want to read in my spare time.

As you’ve noted for yourself, neither am I a lawyer so this is opinion backed by things I’ve seen.

Monavie’s position is completely un-viable. The only legal option I think they possess is to look for defamation. Even that is difficult in an environment like the web under the DMCA, as much as I otherwise dislike that act. Review of another’s product is almost always fair comment. I’m sure there are manufacturer’s who are unhappy with some of the CNet reviews of electronics. But they attack that neither by trademark violation or defamation litigation. They might even start of dissing campaign against the reviewer.

Frugalista is obviously an un-trademark-able if it was already in common use and that can be documented. This kind of scam has been tried before and, should it be necessary, a decent law firm should be able to find plenty of precedent to counter their claim and possibly recover legal fees.

This is the issue of the US trademark and US patent law operation. It is a simple but hard to fix problem. Given the number of applications for each received each year, if the application passes some basic muster (such as being filled in correctly) and does not have any objections filed before being granted, it is usually an automatic grant. The cost of doing even the research of checking dictionaries and online web searches for matches and checking the dates, would be far higher than the taxpayer would accept. The system is based on ability to defend what you applied for and were granted. If someone else believes they have prior art (they invented it first) for a patent, they can file a legal appeal. Similarly with trademarks. What we see here is probably the more common approach, the person who doesn’t believe it is a valid trademark or patent, proceeds to violate (or continue to if they had been using it prior to the filing) and basically leaves it to the filer to issue Cease and Desist requests / orders.

The problem with this is obvious. It favors people with legal staff and big pockets. There are groups such as in software like the Electronic Freedom Foundation (EFF) that have a goal to seek out and destroy invalid patents. Maybe there needs to be an encouragement of some similar group that can assist people with small commercial operations defend reasonably used terms by providing donated legal talent that may give the filers something to think about since if the filer loses the case it is not unusual for them to pay all the legal fees. And the EFF lawyers are good. They are a notch above or more the kind you would like be willing to hire due to the expense. Of course, they not you decide if the case is worth pursuing.

Uh oh, I know I’ve used the term before, though I don’t think I’ve used it in a post title ever. You can’t trademark words, otherwise I’d trademark the most common words in use and sue everyone in sight! Stupid stupid and it gives bloggers everywhere a bad name.
.-= Miss M´s last blog ..Which is Worse â€“ Financial or Physical Infidelity? =-.

Thanks for the great writeup and love the fact that you used the so called trademark in your title.

I think all this is a bunch of crap and both C&D’s are going to fail and lose in court. This is the internet and while there is a ton of legislation monitoring it, there is no way these specific allegations can stand in court because they are not strong at all.

All Lazy Man did was right a review? He can not control people responses, if he were to filter them then what would be the point of blogging in the first place?

Why are you all harrassing a person who popularized the term, filed a Trademark Application, took it through the legal process and received registration? Where were you other so called “Frugalistas” during the trademark “notice period” . The trademark notice period is the time to raise objections. Raising complaint for a personal agenda on this a blog is completely without merit. McNeal is exercising her legal rights and protecting a term that has been distinctive to her since 2008. McNeal is well established as the Frugalista. When she appears on TV, she is called The Frugalista. When you Google, Frugalista, her blog appears at the top of the search engine rankings. The others protesting here used the term after Ms. McNeal registered it. She has used the term Frugalista to describe her blog and has used it distinctively. This is why she was GRANTED a Trademark by the Patent and Trademark office! Everyone can a have blog, but they should not call their blog Frugalista as that term has become distinctive to McNeal. Do a simple online Trademark search before putting a product into the market. Target is using McNeal’s Trademark in an ad campaign, without license or permission. Target filed for use of Frugalista Fashionista (this is a matter of public record, look it up), which is the two words used together. So, how do they now infringe on McNeal’s mark by running an ad campaign which does not use the mark they have filed for registration of, but rather use McNeal’s mark, the one work, Frugalista.

In this case, Frugalista applies distinctively to Ms. McNeal’s blog, The Frugalista Files. Moreover, she is the person who she writes about in her blog who is living a frugal lifestyle.

What is wrong with big business today, Target, and copy cat bloggers taking the trademark of another and misappropriating it and then whining about it on a blog to pressure a small business owner like Natalie McNeal who is merely exercising her legal rights as they have been granted by the US Trademark office? Have you looked any of this up in the PTO RECORDS? Frugalista is reg # 3532912 in the US Trademark Database for the blog of Natalie McNeal. Did you check your facts prior to publishing this rot? This reads like a personal attack on someone who had an innovative idea and sought to legally protect it.

Did you read the linked article to the Jackson Frugalista, who makes an excellent case for the term Frugalista being used in frugal circles for years? She cites a use from 2000, eight years before Ms. McNeal even started her blog. Did you read my article–I acknowledged that she was granted the mark. But if you are, in fact, a jurist, you’ll know that not all marks can be successfully defended in court. Again, I refer you to the Jackson Frugalista’s article.

This woman is attempting to capitalize off a fad and a word used by others long before her. I’d never even heard of her as a frugalista, or “the” frugalista. She didn’t even start her blog until 2008.

Had she been defending the mark “Frugalista Files” I would have had no beef with her and would’ve written in defense of her. That’s the name of her blog, that’s unique, it’s not a phrase that’s been around since well before her (like Target’s “Frugalista Fashionista” is something I hadn’t heard combined before). That’s what she’s known for. If she has other innovative ideas, I hope she trademarks them too.

Why did I write about it? Well, I write about bad businesses from time to time (i.e. Monavie). And because she’s using it to threaten other bloggers who weren’t copying off of her, who in no way seem to be threatening her search engine ranking, I wrote about it. I also wrote because it’s decidedly unfrugal.

I’m not jealous. I think I have a much better and more interesting blog than she does. To each their own.

If you’ll pardon my saying it, this reads much less like the defense of an impartial jurist than it does someone involved with her case. You searched Google for the debate about it to get here…did you come with this rant all planned out ahead of time? Oh wait….you did….you’ve copied & pasted the same rant on other places criticizing McNeal. Really classy. I’d think you were McNeal herself except your IP is from the wrong state.

(since your e-mail is fake, it also amuses me that you use the initials “JD” for Juris Doctor and “juris” as part of your fake e-mail)

JD Your style of writing suggests you are a partisan in the issue without identifying yourself. I could be wrong. The evidence I found in a quick search of the web suggests that the terms Frugalista was in *common* use before she started using it much less applied for a trademark. Very big companies probably have specialists monitoring trademark applications for possible conflicts. Blog writers do not have that resource.

I’ve watch the software industry closely for a while and the issue of ‘Patent trolls’ who use a poor patent claim or one that can be upset by prior art try to get a chunk of the profit out of the innovations of others. Little of it shows any innovation of itself except in the legal speciality.

Overall, I favor limited patent rights and reasonable trademark enforcement. But there needs to be some public ombudsman to help the little person when faced by legal action by someone who has legal resources.

Lazy reviewed a product that he didn’t like. They haven’t got a vaguely believable case – as you say, they have more possibilities with something like libel. Perhaps we shouldn’t be giving them ideas!

As for the other, unless she made the word up I struggle to see how she could reasonably trademark it – it’s related to the type of thing that it is. Who the hell is she anyway, and how rubbish is her brand if no one has heard of her?

I should trademark plonkee. It’s going to be annoying if someone else does so first – clearly I should win. The law, however, is not written in the way that I think it should be.
.-= plonkee´s last blog ..do what works, because done is better than perfect =-.

As far as I know, trademarks such as “Coke” are relevant for the market that Coke operates in, such as food and beverages. As big as Coke is, it’s highly possible they have secured trademarks for all manner of products, but since that isn’t their main line, it’s not a prime example.

A better example might be, “I could not make running shoes and call them Nike,” because Nike operates in that arena. However, it’s probably fine if you created an vehicle company named Nike Motors, because consumer confusion would be low.

That said, bigger companies have little trouble throwing around C&Ds because they have more lawyer power than their opponents do. It’s usually much easier to just change your name, even though you may not have infringed any trademarks.

Wayne Elgin’s comment reminded me of an incident a few years ago. Most of you have heard of Caesar’s Palace in Los Vegas. They were intending to build in Atlantic City. So they tried to register their name in New Jersey and failed because of a Caesar’s Palace Barbershop which was already registered. They sued claiming ownership of the name. They lost. First the barbershop had used the name longer than they had. Second, the barbershop was known in New Jersey (or a small part of it) and they were not. So while they use terms such as palatial and royal concerning Caesar’s of Atlantic City, they do not use the Caesar’s Palace (although google offers Caesar’s Palace to either LV or AC). The little man won. I think he must have had friends to get the legal representation needed to fight such a big corporation such as Caesar’s (or Harrads) must be.

Wait. Are we talking about the same woman who took and image from my site and used it on one of her posts well after I commented on her website? This same person is suing someone else?!!!! Are you serious? I need to get my own CDL out.
.-= Cheapskate Sandy´s last blog ..Finance 101: What the Heck is Peer-to-Peer or P2P Lending? =-.

Good lord, there are some lawyer happy people in the world. Frankly, neither the ‘frugalista’ nor Monavie seem to have much of a leg to stand on, legally speaking. That said, American jurisprudence is an interesting and unpredictable thing, and sadly, it’s not impossible that a judge or jury might rule in their favor, should either of these situations ever go to court. Hopefully, that won’t actually happen, but only time will tell…
.-= Roger´s last blog ..When Companies Get Really Creepy: â€˜Dead Peasantâ€™ Life Insurance =-.

I caved and changed the name — my “buy cool stuff cheap” blog is now http://frugalmississippi.blogspot.com. I ma looking forward to posting info about garage sales in Pelahatchie, MS, without the threat of a lawsuit.

I CAN’T believe I am the only person this has happened to — other people have had their online freedom of speech cut off because of some ridiculous trademark filing. I’d like us all to have a place to go and vent.

I also want to post resources for site visitors who wish to fight the fight.

Ideally, this new blog will catch the attention of some organization that works to protect individuals’ rights online. If I can get someone like that interested, I’d like to see all the people who offered ME money to help in a fight against Trademark Girl in Miami direct those funds to a larger effort to make trademarks work fairly for everyone.

Those of you who have spoken out on the plain craziness of this trademark, I hope you’ll stay interested in the topic. Maybe we can continue to make some noise, get some things changed, and then I CAN CHANGE MY NAME BACK. And laugh maniacally towards the general direction of Miami.
.-= JacksonFrugalGal´s last blog ..GO TO NEW BLOG =-.

From a legal standpoint, I have been following this because of the work I am doing in establishing social media policies, etc. but I wanted to add that Mona Vie is NOT suing lazy man and money. That is a complete sensationalization of a C&D letter that was sent. Yeah, that was stupid and some poor schlepp in legal has egg on their face, but LazyMan and Money is also guilty of blowing this way out of proportion. I think its also completely ridiculous to libel an entire organization or leadership, both against LM&M and MV.

At what point will social media authors and contributors police themselves and their content from rampant, and often false, emotion?

Wow, I’m coming late to the game on reading this and you linked me. (I wish Technorati worked as it used to so I could track links.)

Anyway, the frugalista thing sucks and I hope she can prove in her trademark that she was the first to use the term, which I’m pretty sure she can’t as I know other blogs were using that back in when I started in early 2006.
.-= Lazy Man and Money´s last blog ..â€œDebt Crisis in Americaâ€ & JCR Advertising are Evil =-.

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